Technical Measures and non-software copyright related industries.

I had a long talk yesterday with someone from the music industry. His focus was on music and musicians, while I try to be aware of the variety of ways in which copyright law affects different marketplaces and human rights.

There is a critical problem with thinking only about one type of creative work when analysing recent copyright reform. For instance, legal protection for technical measures is not an issue that you can understand without understanding technical measures, and more specifically the software marketplace.

Legal protection for technical measures, often called Paracopyright, is the most controversial aspect of the 1996 WIPO treaties, and these controversial treaties form the core of Bill C-60 from the previous government. Any discussion of paracopyright must include a discussion of the software marketplace.

Software marketplace

The software industry is currently within a major transformative change (See: Innovators Dillema, by Clayton M. Christensen), with major competitors differing more in the methods they are using to produce, distribute and fund software than in the features of the software.

In the past, software was not a separate industry. Software was included with a hardware purchase. When software was marketed separately, a division in the industry formed between those who continued to market software the same as hardware (the so-called "software manufacturers"), and those who explored aspects of software that are different than hardware. This latter group includes those people who are now part of the Free/Libre and Open Source Software (FLOSS) marketplace.

While "software manufacturing" treats software as a black-box where only the manufacturer can manipulate the internals, to be considered FLOSS means that anyone can run, copy, distribute, study, change and improve the software.

Software manufacturing still dominates specific markets, such as Microsoft's domination of desktop operating systems. Other companies operate more under a hybrid business model, such as Apple who uses FLOSS as the core of MacOS-X (called Darwin) and then has a "software manufacturing" based user interface on top.

In some markets FLOSS dominates, such as for Internet servers. In the case of servers offering web pages the Apache project dominates with close to 70% of the market, with the second place held by Microsoft at only 20%.

FLOSS is understood as critical in the International Development community where the business model of counting copies simply does not make sense. For these countries there is a need to pay up-front for the costs to develop new software, and then allow individual citizens to be allowed to legally share the software without cost. It is impossible for these people to pay the regular price for "Software Manufacturing" software, so the only alternative to legally sharing FLOSS software will always be to illegally share "software manufacturing" software.

"Every license for Office plus Windows in Brazil - a country in which 22 million people are starving - means we have to export 60 sacks of soybeans," says Marcelo D'Elia Branco, coordinator of the country's Free Software Project and liaison between the open source community and the national government, now headed by president Luiz Inácio Lula da Silva.

"We continue to watch the evolution of open-source software development and distribution and continue to differentiate our products from competitive products, including those based on open-source software. We believe that Microsoft's share of server units grew modestly in fiscal 2004, while Linux distributions rose slightly faster on an absolute basis," the filing reads.

Technical Measures

The term "Technical measures" is very broad and can describe any technology that is used to protect against something. Most people are familiar with technical measures such as virus scanners, firewalls, password protection and cryptography used to ensure that only authorized persons can use a computer, and other tools used to protect the security of their computers.

The use of technical measures by the content industry is extremely different. The purpose of technical measures used for computer security is to protect the owner of the computer from the harmful activities of third parties. The content industry intends to use technical measure to protect a third party (the copyright holder) from the owner of the computer.

A short animated video was created by LAFKON to help people understand this point. The issue is one of trust. Technical measures are very helpful when they can be used by computer owners to allow those who they trust in, and deny those who they do not trust. Technical measures are extremely controversial in the hands of copyright holders because it is the owners of the computers they do not trust, and they are deliberately attempting to circumvent the security of computer in order to protect their interests from the owners.

The Sony-BMG "rootkit"/spyware scandal let us know just how far some copyright holders would go in attacking computer security. In this case their so-called "Digital Rights Management" (DRM) software included a rootkit which circumvented the security of the computer, as well as including spyware features which circumvented the privacy of the owner of the computer.

DRM and the software marketplace

The fact that FLOSS protects peoples right to run, copy, distribute, study, change and improve the software means that what FLOSS software does is fully transparent. A computer owner who does not understand software can hire someone that they personally trust to analyze or modify the software, offering for FLOSS the same types of features that "access to information" laws offer for public policy.

The side-effect of this, or what some consider the purpose, is that FLOSS protects the rights of an owner of a computer to be in control of their computer. This means that while FLOSS implements technical measures which protect the owner of the computer from third parties, it can not be used by copyright holders to attack the interests of the owners or circumvent the security of these computers.

This means that copyright holders who are unwilling to trust their customers are going to be unwilling to offer their content in a format that can be used by those of us who use FLOSS. This is already the case for many of the so-called "legal" download sites which offer music encoded in the Apple FairPlay DRM format (iTunes) or the Microsoft Windows Media DRM format (The new Napster, Puretracks, etc). FLOSS software users must either not use FLOSS to access this music, not purchase this music, or circumvent the DRM in order to access their legally purchased music using FLOSS software.

It is obvious that this situation helps the software manufacturers in their battle against their major competitors. While DRM will have little to no effect on the ability of people to infringe the copyright of the music and motion picture industry, any use of DRM will promote the special interests of the software manufacturing companies.

I wonder how musicians would feel if the tables were turned on them: What if Microsoft and Apple mandated that musicians must purchase 30 albums from a competing musician in order to be "legally" allowed to use their already purchased Microsoft Windows or Apple Macintosh computers? Would they consider this fair? If not, then why does any musician feel it is fair to do this to FLOSS developers, which is the effect of DRM and the Bill C-60 type legislation that protects DRM?

FLOSS software developers are copyright holders too. In many cases we are independent authors, able to make a living creating FLOSS much easier than we could make a living trying to break in the much more monopolized "software manufacturing" industry. Is it really the intention of other copyright holders to exclude us from the marketplace when they support technical measures intended to circumvent the security of the owners of computers? Are they really intending to attack the security of their customers, owners of computers, based on a lack of trust of a few of them who might use these computers to infringe copyright?

FLOSS developers also understand how it feels to have our copyright infringed. While our business models minimize infringement by minimizing the incentive of the average person to infringe, we have had companies like LinkSys and Sony-BMG infringe copyright on software from our sector. Members of our sector have a website dedicated to documenting violations of the GNU General Public License, the most popular of all FLOSS license agreements.

The 1996 WIPO treaties made it harder for us to discover infringements of our software as some of these companies wrap infringing software in a technical measure, claiming that it is the actual copyright holder that is circumventing the DRM in order to disclose the infringement. We must realize that technical measures can be used both by copyright holders and those who infringe copyright.

This is not a battle where the "good guys" support technical measures that claim to protect copyright, and the "bad guys" are opposed because they want to infringe copyright. Some supporters of Bill C-60 style legislation are clearly doing so to protect themselves from being detected or prosecuted for activities that would otherwise be unlawful.

Missing in the comments seems to be an acknowledgement that DRM can never work for its intended purpose. When you move from the need for backward compatibility (Audio CDs intended to play on older CD players) to encrypted formats (DVD CSS, the new Advanced Access Content System (AACS) used on next generation HD/Blue-Ray DVD's) you still have a system that is very easy for a technically sophisticated person to circumvent.

In order to listen/see the content in the home it is a fact that both the encrypted content and the decryption key must also be in the home. If the decryption keys are tied to devices rather than persons then there will always be an incentive for infrinters to extract the keys from the devices, decode the content, and then share the DRM-free content with others.

This is an issue that has no technical solution, and the sooner the content industry realizes this the more likely they are to survive in the future. In fact, the more technology that is thrown at the problem. If the technology "punishes" people who do not infringe copyright anyway (which all DRM does as they create inappropriate technical limitations), this will always induce people to do the thing that they are being punished for anyway.